State responsibility 91 taken.447 But assurances and guarantees of non-repetition will not always be appropriate, even if demanded. Much will depend on the circumstances of the case, including the nature of the obligation and of the breach. The rather exceptional character of the measures is indicated by the words “if circumstances so require” at the end of subparagraph (b). The obligation of the responsible State with respect to assurances and guarantees of non-repetition is formulated in flexible terms in order to prevent the kinds of abusive or excessive claims which characterized some demands for assurances and guarantees by States in the past. (2) In a subsequent phase of the same case, the Court went on to specify in more detail the content of the obligation of reparation. It said: Article 31. Reparation In the first sentence, the Court gave a general definition of reparation, emphasizing that its function was the re-establishment of the situation affected by the breach.451 In the second sentence, it dealt with that aspect of reparation encompassed by “compensation” for an unlawful act—that is, restitution or its value, and in addition damages for loss sustained as a result of the wrongful act. 1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. 2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. Commentary (1) The obligation to make full reparation is the second general obligation of the responsible State consequent upon the commission of an internationally wrongful act. The general principle of the consequences of the commission of an internationally wrongful act was stated by PCIJ in the Factory at Chorzów case: It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application.448 In this passage, which has been cited and applied on many occasions,449 the Court was using the term “reparation” in its most general sense. It was rejecting a Polish argument that jurisdiction to interpret and apply a treaty did not entail jurisdiction to deal with disputes over the form and quantum of reparation to be made. By that stage of the dispute, Germany was no longer seeking for its national the return of the factory in question or of the property seized with it. to the British Naval Commanders to molest no German merchantmen in places not in the vicinity of the seat of war”, Martens, op. cit. (footnote 441 above), vol. XXIX, p. 456 at p. 486. 447 In the Trail Smelter case (see footnote 253 above), the arbitral tribunal specified measures to be adopted by the Trail Smelter, including measures designed to “prevent future significant fumigations in the United States” (p. 1934). Requests to modify or repeal legislation are frequently made by international bodies. See, e.g., the decisions of the Human Rights Committee: Torres Ramirez v. Uruguay, decision of 23 July 1980, Official Records of the General Assembly, Thirty-fifth Session, Supplement No. 40 (A/35/40), p. 126, para. 19; Lanza v. Uruguay, decision of 3 April 1980, ibid., p. 119, para. 17; and Dermit Barbato v. Uruguay, decision of 21 October 1982, ibid., Thirty-eighth Session, Supplement No. 40 (A/38/40), p. 133, para. 11. 448 Factory at Chorzów, Jurisdiction (see footnote 34 above). 449 Cf. the ICJ reference to this decision in LaGrand, Judgment (footnote 119 above), p. 485, para. 48. The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals—is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.450 (3) The obligation placed on the responsible State by article 31 is to make “full reparation” in the Factory at Chorzów sense. In other words, the responsible State must endeavour to “wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed”452 through the provision of one or more of the forms of reparation set out in chapter II of this part. (4) The general obligation of reparation is formulated in article 31 as the immediate corollary of a State’s responsibility, i.e. as an obligation of the responsible State resulting from the breach, rather than as a right of an injured State or States. This formulation avoids the difficulties that might arise where the same obligation is owed simultaneously to several, many or all States, only a few of which are specially affected by the breach. But quite apart from the questions raised when there is more than one State entitled to invoke responsibility,453 the general obligation of reparation arises automatically upon commission of an internationally wrongful act and is not, as such, contingent upon a demand or protest by any State, even if the form which reparation should take in the circumstances may depend on the response of the injured State or States. (5) The responsible State’s obligation to make full reparation relates to the “injury caused by the internationally wrongful act”. The notion of “injury”, defined in paragraph 2, is to be understood as including any damage caused by that act. In particular, in accordance with paragraph 2, “injury” includes any material or moral damage caused thereby. This formulation is intended both as inclusive, covering both material and moral damage broadly understood, and as limitative, excluding merely abstract concerns or general interests of a State which is individu450 Factory at Chorzów, Merits (see footnote 34 above), p. 47. Cf. P.-M. Dupuy, “Le fait générateur de la responsabilité internationale des États”, Collected Courses ... 1984–V (Dordrecht, Martinus Nijhoff, 1986), vol. 188, p. 9, at p. 94, who uses the term restauration. 452 Factory at Chorzów, Merits (see footnote 34 above), p. 47. 453 For the States entitled to invoke responsibility, see articles 42 and 48 and commentaries. For the situation where there is a plurality of injured States, see article 46 and commentary. 451